Debates in the Federal Convention of 1787

by James Madison

Wednesday, August 15

In Convention. – Article 6, Section 11, was agreed to,nem. con.

Article 6, Section 12, was then taken up.

Mr. STRONG moved to amend the article so as to read, “Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same, and for fixing the salaries of the officers of the Government, which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases.”

Colonel MASON seconds the motion. He was extremely earnest to take this power from the Senate, who he said could already sell the whole country by means of treaties.

Mr. GORHAM urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them.

Mr. WILLIAMSON. Some think this restriction on the Senate essential to liberty; others think it of no importance. Why should not the former be indulged? He was for an efficient and stable government; but many would not strengthen the Senate, if not restricted in the case of money bills. The friends of the Senate, would, therefore, lose more than they would gain, by refusing to gratify the other side. He moved to postpone the subject, till the powers of the Senate should be gone over.

Mr. MERCER should hereafter be against returning to a reconsideration of this section. He contended (alluding to Mr. MASON’S observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding, that treaties would not be final, so as to alter the laws of the land, till ratified by legislative authority. This was the case of treaties in Great Britain; particularly the late treaty of commerce with France.

Colonel MASON did not say that a treaty would repeal a law; but that the Senate by means of treaties, might alienate territory, &c., without legislative sanction. The cessions of the British Islands in the West Indies, by treaty alone, were an example. If Spain should possess herself of Georgia, therefore, the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.

On the question for postponing Sect. 12, it passed in the affirmative, —

Mr. MADISON moved the following amendment of Article 6, Sect. 13: “Every bill which shall have passed the two Houses shall, before it become a law, be severally presented to the President of the United States, and to the Judges of the Supreme Court, for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that House in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that House, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other House; by which it shall likewise be reconsidered, and, if approved by two thirds, or three fourths of the other House, as the case may be it shall become a law.”

Mr. PINCKNEY opposed the interference of the Judges in the legislative business: it will involve them in parties, and give a previous tincture to their opinions.

Mr. MERCER heartily approved the motion. It is an axiom that the Judiciary ought to be separate from the Legislative; but equally so, that it ought to be independent of that department. The true policy of the axiom is, that legislative usurpation and oppression may be obviated. He disapproved of the doctrine, that the Judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontrollable.

Mr. GERRY. This motion comes to the same thing with what has been already negatived.

Mr. GOUVERNEUR MORRIS regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative assemblies. He suggested the idea of requiring three fourths of each House to repeal laws where the President should not concur. He had no great reliance on the revisionary power, as the Executive was now to be constituted (elected by Congress.) The Legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the National Legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring three fourths to repeal would, though not a complete remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities.

Mr. DICKINSON was strongly impressed with the remark of Mr. MERCER, as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was, at the same time, at a loss what expedient to substitute. The Justiciary of Arragon, he observed, became by degrees the law-giver.

Mr. GOUVERNEUR MORRIS suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary, which was part of the Executive, should be bound to say, that a direct violation of the Constitution was law. A control over the Legislature might have its inconveniences. But view the danger on the other side. The most virtuous citizens will often, as members of a Legislative body, concur in measures which afterwards, in their private capacity, they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded against. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylvania points out the many invasions of the Legislative department on the Executive, numerous as the latter1 is, within the short term of seven years; and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments against it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome, where the aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the Legislative authority to usurp on the Executive, and wished the section to be postponed, in order to consider of some more effectual check than requiring two thirds only to overrule the negative of the Executive.

Mr. SHERMAN. Can one man be trusted better than all the others, if they all agree? This was neither wise nor safe. He disapproved of judges meddling in politics and parties. We have gone far enough, in forming the negative as it now stands.

Mr. CARROLL. When the negative to be overruled by two thirds only was agreed to, the quorum was not fixed. He remarked, that as a majority was now to be the quorum, seventeen in the larger, and eight in the smaller, House, might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controlling power, however, of the Executive, could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.

Mr. GORHAM saw no end to these difficulties and postponements. Some could not agree to the form of government before the powers were defined. Others could not agree to the powers till it was seen how the government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixed in the United States.

Mr. WILSON, after viewing the subject with all the coolness and attention possible, was most apprehensive of a dissolution of the Government from the Legislature swallowing up all the other powers. He remarked, that the prejudices against the Executive resulted from a misapplication of the adage, that the Parliament was the palladium of liberty. Where the Executive was really formidable, king and tyrant were naturally associated in the minds of people; not legislature and tyranny. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the Parliament, than had been exercised by the monarch. He insisted that we had not guarded against the danger on this side, by a sufficient self-defensive power, either to the Executive or Judiciary Department.

Mr. RUTLEDGE was strenuous against postponing; and complained much of the tediousness of the proceedings.

Mr. ELLSWORTH held the same language. We grow more and more skeptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.

The question for postponement passed in the negative, — Delaware and Maryland only being in the affirmative.

Mr. WILLIAMSON moved to change, “two thirds of each House,” into “three fourths,” as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the President alone, to admitting the Judges into the business of legislation.

On this motion for three fourths, instead of two thirds, it passed in the affirmative, — Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye, — 6; New Hampshire, Massachusetts, New Jersey, Georgia, no, — 4; Pennsylvania, divided.

Mr. MADISON, observing that if the negative of the President was confined to bills, it would be evaded by acts under the form and name of Resolutions, votes, &c., proposed that “or resolve,” should be added after “bill”, in the beginning of section 13, with an exception as to votes of adjournment, &c. After a short and rather confused conversation on the subject, the question was put and rejected, the votes being as follows, — Massachusetts, Delaware, North Carolina, aye, — 3; New Hampshire, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no, — 8.

“Ten days (Sundays excepted),” instead of “seven”, were allowed to the President for returning bills with his objections, — New Hampshire and Massachusetts only voting against it.

The thirteenth Section of Article 6, as amended, was then agreed to.

Adjourned.

1 The Executive consisted at that time of about twenty members. Return to text